demand of the whole penalty in cases where small damages only have accrued. And therefore, it is not in the plaintiff's power to refuse to proceed according to the statute, but he must assign the breach of such covenants as he proceeds to recover satisfaction for; and if the defendant plead to issue, the jury upon the trial must assess damages for such of

(b) This statute has been held not to extend to bail bonds; 2 B. & P. 446. Moody v. Pheasant; replevin bonds; 3 M. & S. 155. Middleton v. Bryan; and bonds formerly given to the chancellor under 6 G. 4, c. 16, by the petitioning creditor on suing out a commission of bankrupt. 3 East, 16. Smithey v. Edmonson. For in the two former cases the court can relieve the defendant without his being compelled to file a bill in equity; and in the latter the chancellor was expressly empowered to assess the damages by 6 G. 4, c. 16, s. 16. Neither does it extend to common money bonds; against the penalty of which the courts give relief by stat. 4 Ann. c. 16, s. 13; nor to post obit bonds. 2 Camb. 285. Warden v. Fermor. 2 B. Moore, 220. Cardozo v. Hardy. 2 B. & C. 82. Murray v. Earl of Stair. [For in such cases, in order to ascertain the precise sum duc,

V.

the breaches assigned as the plaintiff shall prove to have been broken; otherwise the verdict is erroneous, and a venire de novo will be awarded. So it is where there is a judgment upon demurrer or by default. 5 T. R. 636. Hardy v. Bern. Ibid. 538. Roles v. Rosewell. 2 Wils. 377. Drage v. Brand. Cowp. 359 (b). Goodwin v. Crowle. Before this Act,

computation only is requisite ; and the intervention of a jury, or of a court of equity, is unnecessary. Accordingly a bond for the payment of a sum certain on a given day, and of interest in the mean time on specified days anterior to the day fixed for the payment of the principal, is not within the statute, if, at the time the bond is put in suit, both principal and interest are due; and it will make no difference that, by the condition, the liability to pay those sums depends on the performance or non-performance of certain provisoes contained in another indenture, if there be a plea of payinent according to those provisoes, and the issue joined on a traverse thereof has been found for the plaintiff. 10 Bing. 125. Smith v. Bond. 3 M. & Sc. 528. S. C. So if a bond be conditioned for the payment of money in three years from the

date of the bond and interest in the mean time half yearly, with a stipulation that, on any default of paying the interest, the whole sum shall be demandable, it is not within the statute; and on the interest falling into arrear, the obligee may put the bond in suit and take out execution for the whole principal sum, and not merely for the arrears of interest. 5 B. & Ad. 40. James v. Thomas. The crown is not bound to pursue the statute. 1 Y. & Jer. 171. Rex v. Peto, per Alexander, C. B.] But all other bonds, either for the payment of money by instalments, or of annuities, or for the performance of any covenants or agreements, are within the statute. 8 T. R. 126. Wallcot v. Goulding. 6 East, 550. Willoughby v. Swinton. Ibid. 613. Welch v. Ireland. 2 Smith. 666. S. C., post. 2 2 Saund. n. (2), to Roberts v. Mariett.

the defendant had paid the whole debt, that is, the penalty of the bond, he might have pleaded the payment in bar of the demand before the statute. 2 Burr. 824. And upon this principle, since the statute, it was held in White v. Sealy, Dougl. 49, which was a bond conditioned for payment of rent, that the bond was only a security to the amount of the penalty; and therefore the court

A warrant of attorney conditioned for the payment of money by instalments [or to secure the payment of an annuity], is not within the statute; 3 Taunt. 74. Cox v. Rodbard. 5 Taunt. 264. Kinnersley v. Mussen. [6 Bing. 385. Shaw v. Lord Worcester. 4 M. & P. 21. S. C. 5 B. & Ad. 41, per Littledule, J.] ; although a bond be also given. 2 Taunt. 195. Austerbury v. Morgan. [But in 5 B. & C. 650. Hurst v. Jennings, a bond, upon the face of it, appeared to be conditioned for the payment of a sum certain; but by an indenture of the same date, declaring the purposes for which the bond was executed, it was agreed that it should be lawful for the obligees in the bond to commence an action, and to proceed to judgment whenever they should think fit, and upon judgment being obtained, to issue execution,

ordered, that upon payment by the obligor of the penalty and costs into court, the plaintiff should acknowledge satisfaction on record. So in 2 Black. 1190. Brangwin v. Perrot, which was a bond to indemnify a parish against a bastard child, the court made a like order, that upon payment of the penalty and costs into court, the defendant should be relieved from the bond. And in 6 T. R. 303. Wilde v. Clarkson, which was also a bond to indemnify a parish against a bastard child, the court ordered that, upon payment of the penalty and costs

and that the judgment should be a security for the payment to the obligees, on demand, of all sums of money which then were or might thereafter become due to them a judgment having been entered up by virtue of this deed, the obligees issued execution without assigning breaches or executing a writ of inquiry; and it was held, that this was a bond substantially conditioned for the performance of an agreement within the statute, and that the obligees ought to have assigned breaches.

By the C. L. P. Act, 1852, s. 96: "Nothing in this Act con"tained shall in any way affect the

v.

GRIFFITH.

into court, satisfaction should be entered on the record; and Lord Lonsdale v. Church, 2 T. R. 388, was denied. That was a bond conditioned to account to the plaintiff for all sums of money received by the defendant as receiver of the harbour dues of Whitehaven; and it was held, that damages might be recovered for more than the amount of the penalty; and therefore the court refused to stay the proceedings upon payment of the penalty into court. It seems clear, however, that, both at law and in equity, the obligee cannot recover more

"gestion of breaches, or as to judg"ment for a penalty as a security "for damages in respect of further "breaches." Therefore in an action on a bond within that statute money cannot be paid into court and pleaded under the C. L. P. Act, s. 70 (ante, 45, 46), for such a plea is no answer to the action, and under s. 73 (ante, 48), the plaintiff ought to be able to take the money out of court in satisfaction of the cause of action in respect of which it has been paid in, which he could not do in such a case, inasmuch as the judgment would not stand as a security for further breaches. 9 Exch. 490. Bishop of London v. M'Neil.]

V.

damages against the obligor for a breach of the condition of the bond, than the amount of the penalty and costs; for the bond ascertains the extent of the damage by consent of the parties, and therefore if a bond be conditioned for performance of any act, and the obligee, by reason of the obligor's non-performance, sustains a damage far exceeding the

(c) 2 Marsh. 226. Shutt v. Procter. 3 Bro. C. C. 489. Tew v. Earl of Winterton. Ibid. 496. Knight v. Maclean. 5 Ves. 329. Mackworth v. Thomas. [1 Taunt. 220. Hefford v. Alger. So in an action by the assignee of the sheriff in a repevin bond, proceedings will be stayed upon payment of the penalty and the costs of the action. 6 Q. B. 13. Branscombe v. Scarborough. See, as to recovering damages beyond the penalty of money bonds, Ry. & M. 105. Francis v. Wilson. 3 C. & P. 12. Hellen v. Ardley. 3 Pri. 219. Eastmond v. Holl. Where a penal sum is recovered, damages are never given. 10 Mod. 278. Holroi v. Ebizson, per Parker, C. J.]

() Where the penalty is contained in any other instrument than a bond, damages may be recovered beyond it; 1 Black. 895. Winter v. Trimmer. 13 East,

amount of the penalty, yet he can only recover to the extent of the penalty and costs. 6 T. R. 304. 6 Ves 414, 415. Clarke v. Seton (c). But if a judgment be recovered on a bond, though it be a foreign judgment, in an action on the judgment, interest may be recovered in damages beyond the penalty of the bond. 1 East, 436. M'Clure v. Dunkin (d).

343. Harrison v. Wright; for the plaintfff has his option to sue either for the penalty or for the breach of contract.

If he sue for the penalty in an action of debt, the case is within the statute 8 & 9 W. 3, and its provisions must be complied with: But if he sue either in covenant or assumpsit, according as the writing which contains the penalty is under seal or not, he proceeds for damages; and it is immaterial whether he claims the penalty or not; for the jury are not bound to give that sum, but may give more or less as they think fit; and the case is not within the statute; for in these actions, which sound in damages, the judgment is for the damages found by the jury and no more, and cannot possibly stand as a security for future breaches. [See 1 C. B. 244. Mayham v. Norris.] The statute is evidently confined to actions of

With respect to the pleading upon this statute, the general practice is to declare as upon a common bond ((e) post, 75); the defendant in his plea sets out upon oyer the condition of the bond, which is (for instance) to perform the covenants in an indenture; he then sets out the indenture and

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GRIFFITH.

the covenants, and pleads a performance of them; the plaintiff thereupon in his replication assigns breaches of the covenants which he seeks a satisfaction for, beginning the assignment of the second and every subsequent breach with the formal words, And for a further breach the

debt. Even in debt, whenever the sum mentioned in any instrument must, from the express language of the instrument, or from necessary implication, be considered as the ascertained or liquidated damages agreed to be paid by one party to the other on the happening of a particular event, or the performance or omission of a particular act, the statute will not apply; for in such case the sum is not a penal sum; and courts of equity will not relieve against such sum, although they will against a penalty. The distinction is thus illustrated by Lord Mansfield, C. J., in 4 Burr. 2229. Lowe v. Peers. "As in leases

'sation; it is the substance of the agreement." [See 3 B. & A. 692. Farrant v. Olmius. 3 Y. & Jerv. 298. Jones v. Green. 1 Cr. & M. 734. Denton v. Richmond. 3 Tyrw. 734. S. C. Accord.] See further as to this distinction, 2 B. & P. 346. Astley v. Weldon, and the cases there cited. 3 Wils. 270. Goddard v. Vanderheyden. 3 B. & P. 630. Smith v. Dickenson. 1 Bro. C. C. 418. Slowman v. Walter. 2 Bro. C. C. 341. Errington v. Aynesley. ton v. Aynesley. 14 Ves. 468. Shackle v. Baker.

[Upon the question, whether the sum is to be considered a penalty or liquidated damages, the rule appears to be now established, that where the same sum is stipulated as recoverable for the breach of every article in an agreement, however minute and unimportant, it shall be regarded as a penalty and not as liquidated damages, notwithstanding the agreement declares not only affirmatively that the same shall be